All posts by Paul J. McAndrew, Jr.

Patient Access To Physicians Notes: An Experiment of Psychological Importance

Today’s post was shared by Gelman on Workplace Injuries and comes from well.blogs.nytimes.com

Photo Today’s post is shared from the NYTimes.com  What would happen if all workers’ compensation patients had access to all their treating physician’s records including pschiatric care? Would such access assist in limiting and increasing litigation for continued medical care and the need for medical treatment?

David Baldwin wasn’t sure how he had come across the other day in group therapy at the hospital, near the co-op apartment where he lives with his rescue cat, Zoey. He struggles with bipolar disorder, severe anxiety and depression. Like so many patients, he secretly wondered what his therapist thought of him.

But unlike those patients, Mr. Baldwin, 64, was able to find out, swiftly and privately. Pulling his black leather swivel chair to his desk, he logged onto a hospital website and eagerly perused his therapist’s session notes.

The clinical social worker, Stephen O’Neill, wrote that Mr. Baldwin’s self-consciousness about his disorder kept him isolated. Because he longed to connect with others, this was particularly self-defeating, Mr. O’Neill observed. But during the session, he had also discussed how he had helped out neighbors in his co-op.

“This seems greatly appreciated, and he noted his clear enjoyment in helping others,” Mr. O’Neill wrote. “This greatly assists his self-esteem.”

A smile animated Mr. Baldwin’s broad, amiable features. “I have a tough time recognizing that…

[Click here to see the rest of this post]

truck_accident.jpg

Workers’ Comp Covers Work-Related Motor Vehicle Accidents

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Do you drive a company vehicle as part of your job?

Many find themselves in the situation where they travel regularly, or on a special errand from time to time, as part of their job. 

In the unfortunate scheme of things, if you are involved in an accident while driving, whether it is your fault or not, you are covered by and entitled to workers’ compensation benefits just as any other employee who suffers an accident on the premise of an employer.

More importantly, if the cause of the accident was not due to negligence of your own, but that of a third party, you have a right to bring a third-party negligence action against the party responsible for causing the vehicle accident. This right is separate and distinct from the workers’ compensation benefits that you are entitled to. Further, you also potentially have the right to bring an underinsured motorist coverage claim under your employer’s motor vehicle coverage as well as your own underinsured motorist vehicle coverage. These, too, are separate and distinct from the workers’ compensation benefits you are entitled to. 

It is important to note that the employer would have a subrogation right to be reimbursed for workers’ compensation benefits paid on your behalf against that of any third-party negligence claim where you obtained a recovery. However, as underinsured motorist coverage is typically viewed as contractual benefits in nature, there is no subrogation right from your employer if underinsured benefits are obtained in Nebraska.

If you or someone you know was injured in a motor vehicle accident that arose out of and in the course of one’s employment, there are significant issues to be aware of in order to obtain a recovery that meets your needs. If you have any questions or uncertainty when dealing with this point of law, please seek the advice of an experienced attorney who can help steer you in the best course of action.

Inability-Disability-Law.jpg

Bad Time to be a Disability Lawyer

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I passed through Customs after a trip to Europe this week and explained to the Customs official that I represented injured workers.  His first comment to me was “How ‘bout those guys that are scamming the system?”  I attempted to provide the disclaimer to his notion that “At least one out of every three is a fraud.” by explaining that in a long term study of fraud in Wisconsin, the incidence of fraud was literally one in 5,000.

Nonetheless, that notion persists.  I read with interest today the speech of Professor Jon C. Dubin accepting a Distinguished Service Award.  I sent Professor Dubin a congratulatory note and obtained his permission to reprint it in an upcoming issue of the Workers First Watch (the magazine of the Workers Injury Law and Advocates Group (WILG) which I edit.  He noted

“Sometimes it seems like the only thing less popular than a disability benefit claimant these days is a disability benefit claimant with a lawyer. But it bears remembering that you are the first line of defense against these stereotypes and misperceptions and against the insidious drumbeat of atypical anecdotes and calls for draconian policy change. You are also the only ones who can communicate your clients’ true and heartbreaking counter-narratives to those fraud stories. You are the ones who can describe the terrible injustices that routinely occur in assembly line administrative decision-making especially when there is a cloud of political pressure lurking above that process.”

References made to Social Security representation are also applicable in our worker’s compensation arena.  Congratulations again to Professor Dubin on his well-deserved award and his accurate perceptions of disability claimants and their representatives.

Supreme Court Rules in Favor of Electronics Plant in Poisoned Water Case

Today’s post was shared by Gelman on Workplace Injuries and comes from www.nytimes.com

WASHINGTON — Landowners who say a North Carolina electronics plant poisoned their drinking water missed a filing deadline, the Supreme Court ruled on Monday.

The decision, in a 7-to-2 vote, is likely to affect similar suits from the families of thousands of former Marines over what they say was toxic pollution at Camp Lejeune, also in North Carolina.

The case decided on Monday concerned a 1980 federal law that made it easier to sue over environmental contamination, which can be hard to discover and may cause symptoms only decades later. The law said state statutes of limitations do not begin to run until plaintiffs learn of, or should have discovered, the harm in question.

The plaintiffs in Monday’s case said their drinking water had been contaminated between 1959 and 1985 by a plant in Asheville, N.C., run by CTS Corporation. They sued in 2011, after a 2009 report from the Environmental Protection Agency.

Both sides agreed that the suit was not barred by North Carolina’s statute of limitations. The question for the justices was whether a separate state law — a 10-year so-called statute of repose — was displaced by the 1980 federal law.

Justice Anthony M. Kennedy, writing for the majority, said no. The second state law, which started to run when CTS took its “last culpable act,” barred the suit, he wrote. CTS sold the Asheville property in 1987; the plaintiffs did not sue until 24 years later.

Justice Kennedy relied on a congressional…

[Click here to see the rest of this post]

Montana Indian voting lawsuit settled

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from www.greatfallstribune.com

-Linda McCulloch 2.jpg_20130107.jpg

McCulloch (Photo: TRIBUNE PHOTO/LARRY BECKNER )

HELENA – Indian plaintiffs who sued in federal court to force the Montana secretary of state and three rural counties to open satellite voting offices on remote reservations have settled the lawsuit out of court.

Under the agreement, the three counties agree to open satellite voting locations on three reservations and pay plaintiffs’ attorney fees in the amount of $75,000. In a separate agreement, the state agrees to pay an additional $25,000 in attorney fees, according to Secretary of State Linda McCulloch.

"I pledged to help assist the tribes and the counties to make this all work," McCulloch said.

Both sides hailed the agreement as a win.

Northern Cheyenne tribal member Mark Wandering Medicine, along with 11 other Indian plaintiffs, in February 2013 sued McCulloch and county elections officials in Blaine, Rosebud and Big Horn counties, alleging the defendants violated portions of the federal Voting Rights Act, which "prohibit voting practices or procedures that discriminate on the basis of race, color or membership in one of the language minority groups."

The plaintiffs argued their rights to equal access to voting were violated when McCulloch and county elections officials refused to set up satellite voting offices on remote Indian reservations in advance of the November 2012 presidential election.

The U.S. Department of Justice’s Civil Rights Division, the ACLU of Montana and the national ACLU Voting…

[Click here to see the rest of this post]

Amazon Being Investigated for Worker’s Death at U.S. Warehouse

Today’s post was shared by Gelman on Workplace Injuries and comes from recode.net

The Occupational Safety and Health Administration is currently looking into the recent death of a worker in an incident at an Amazon warehouse, it revealed in a press release yesterday. The incident occurred on June 1 at an Amazon fulfillment center in Carlisle, Pa., the agency said.

The Associated Press reported that the deceased is Jody Rhoads, a 52-year-old woman who was killed when machinery she was operating to move pallets crashed into shelving and pinned her.

“Our thoughts and prayers go out to Jody’s family and loved ones,” an Amazon spokeswoman said. “We are actively working with OSHA to investigate this tragedy.”

Separately, OSHA yesterday issued its findings on the investigation into the work conditions surrounding the death of 57-year-old Ronald Smith, who died in December after being crushed my machinery at a New Jersey sorting facility owned by Amazon but operated by a separate company.

Five companies were cited for violations related to Smith’s death, but Amazon wasn’t one of them. One was Genco, the logistics company hired by Amazon to manage the facility as well as four staffing agencies, including one called Abacus that employed Smith. The four staffing agencies each face penalties of $6,000 — yes, only $6,000 — for “failure to perform a hazard assessment of the facility before assigning employees to determine if hazards existed.”

Genco is also facing a $6,000 penalty for failing to confirm that…

[Click here to see the rest of this post]

sweeping.jpg

Transitional ‘Light’ Duty Jobs: What Are They and Do I Have to Take One?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

When injured at work, your doctor may give you work restrictions that prevent you from returning to your regular job. In these situations, there are three things your employer can do:

  1. Tell you that they have no jobs within your restrictions
  2. Give you a transitional duty (or “light duty”) job within your restrictions
  3. Force you to work your regular job in violation of your restrictions

If it’s #3, call a lawyer immediately and inform your doctor that your employer is not following the doctor’s orders.

If it’s #1, you would be taken off work and you would be entitled to workers’ compensation benefits for temporary disability until you are released back to work or until your employer accommodates your work restrictions.

If it’s #2, it not always clear what the result will be. This “transitional duty” option is when your employer returns you to work but not at your normal job. Instead you are given a different, temporary job while you are on restrictions.

Problems arise with these transitional jobs when your hours are cut, your pay is cut, or you are asked to do a job that is unreasonable. Often, if you refuse to work a transitional duty job that is in your restrictions, you could forfeit your right to obtain work comp payments for temporary disability while you are on those restrictions and off work.

If the transitional duty job that is offered to you cuts your hours, you will probably be entitled to temporary disability payments in an amount to make up (somewhat) for the difference in what you were making before the incident that caused the injury and what you are now making in your transitional job.

Similarly, if your hourly rate or your wages for your transitional job are less than what you would have been earning before you were injured, you would again be entitled to temporary disability payments in an attempt to make up for the shortfall.

Where transitional duty jobs have a gray area is whether they are truly reasonable jobs that are being offered. For example, there are horror stories of employees working in the near dark for 8 hours per day or working in appalling conditions sorting paperclips for transitional duty. Whether or not you have to take a job like these horror stories without forfeiting your right to temporary disability payments depends on the facts of each specific case.

Click the link – it’s about a Walmart guy who had to do “light duty” in the bathroom for 7 hours a day: http://www.aol.com/article/2014/05/27/wal-mart-employee-claims-he-was-forced-to-spend-7-hour-shift-in/20893585/?icid=maing-grid7%7Chtmlws-main-bb%7Cdl28%7Csec1_lnk3%26pLid%3D481058

Generally speaking, however, if you are offered a transitional job within your restrictions, you should probably take that job unless you have a very good reason that you cannot. For example, in at least one Nebraska case, the court held that even having an employee relocate 300 miles for a temporary transitional job was considered a reasonable job offer. Even transitional jobs that are during different shifts than your normal shift may be considered reasonable. If a job is reasonable and you do not have a good reason for not accepting such a transitional job, you could be denied temporary benefits and be left without any pay at all while attempting to recover from your work injury.

If you have a job that sounds unreasonable, and you are contemplating whether or not you are required to accept such a job, contact a lawyer. An experienced lawyer will be able to give you a good idea of whether turning down such a job would allow your employer to deny you temporary disability payments or not.

American-Flag.jpg

Memorial Day Holds Much Meaning

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Memorial Day is another opportunity to reflect and remember. I recently came across a post from Financial Carrier Services Inc. on Google+ that was a nice summary of what Memorial Day really means. Many people spend this holiday with family and friends, and some of these gatherings contemplate the more somber, traditional meaning of the day. Others have to work on Memorial Day and don’t really get a holiday. And other folks are navigating the roadways on one of the few holidays they get from their employer a year. Meanwhile, many truckers are on a schedule with loads and focused on safety with the increased traffic on the weekend that’s the unofficial start of summer. I urge all to be safe on roads, around grills, swimming pools, and in whatever celebration is planned. Please also look into the Memorial Day celebrations that the majority of communities have planned with veterans’ organizations for the day. Regardless of what you end up doing, please take some time today to remember fallen soldiers, explain to your children, and remind your friends and family the true meaning of the holiday.

We would like to take time this Memorial Day to remember the men and women who died while serving in the United States Armed Forces, and to thank all of our men and women in uniform for their service.

We also know that today is a national holiday and the symbolic beginning of summer, so we hope that everyone is enjoying their time off and being safe. For your information, below is a list of grilling safety tips adopted from a guidepublished by the U.S. Consumer Product Safety Commission:

Gas Grill Safety Tips

  1. Check the tubes that lead into the burner for any blockage from insects, spiders, or food grease. Use a pipe cleaner or wire to clear blockage and push it through to the main part of the burner.
  2. Check grill hoses for cracking, brittleness, holes, and leaks. Make sure there are no sharp bends in the hose or tubing.
  3. Move gas hoses as far away as possible from hot surfaces and dripping hot grease. If you can’t move the hoses, install a heat shield to protect them.
  4. Replace scratched or nicked connectors, which can eventually leak gas.
  5. Check for gas leaks, following the manufacturer’s instructions, if you smell gas or when you reconnect the grill to the liquid petroleum (LP) gas container. If you detect a leak, immediately turn off the gas and don’t attempt to light the grill until the leak is fixed.
  6. Keep lighted cigarettes, matches, or open flames away from a leaking grill.
  7. Never use a grill indoors. Use the grill at least 10 feet away from your house or any building. Do not use the grill in a garage, breezeway, carport, porch, or under a surface that can catch fire.
  8. Do not attempt to repair the tank valve or the appliance yourself. See an LP gas dealer or a qualified appliance repair person.
  9. Always follow the manufacturer’s instructions that accompany the grill.
  10. Store LP containers upright, and never near a grill or indoors or in a hot car or car trunk.
  11. Do not store or use gasoline or other flammable liquids near the grill.

Charcoal Grill Safety Tips

Charcoal produces carbon monoxide (CO) when it is burned. CO is a colorless, odorless gas that can accumulate to toxic levels in closed environments. Each year about 30 people die and 100 are injured as a result of CO fumes from charcoal grills and hibachis used inside.

To reduce these CO poisonings:

  1. Never burn charcoal inside of homes, vehicles, tents, or campers. Charcoal should never be used indoors, even if ventilation is provided.
  2. Since charcoal produces CO fumes until the charcoal is completely extinguished, do not store the grill indoors with freshly used coals.